Divorce and Social Security benefits

Social Security Benefits for Divorced Spouses

While the divorce rate in the United States is declining overall, the one among people nearing and at retirement age is actually on the rise. The country now has more people who are eligible for spousal benefits than at any other point since the Social Security Act was enacted in 1935. The process to claim benefits as a divorced spouse is often much more complex than it is for a spouse that is still married, and many divorce attorneys recommend seeking representation that can help you navigate the system.

Are Divorced Spouses Entitled to Social Security Spousal Benefits?

Yes, divorced spouses are eligible if certain criteria are met. The other spouse—the one with the work history upon which the benefits will be based—must be entitled to receive either retirement or disability benefits. Ex-spouses, spouses and children are not eligible at all until that first condition is met. The person to collect spousal benefits must be at least 62 years old. The marriage must have lasted for a period of no less than 10 years, and the person claiming the spousal benefit must not currently be married to another person.

Full Retirement Age

People born after 1960 become eligible to claim Social Security retirement benefits at 62 years old, but the full retirement age for them is 67. At age 67, a person is entitled to 100% of their Primary Insurance Amount. If you claim your benefits at 62 years old, you get 70%, and that percentage increases by approximately 0.5% for each additional month you wait to claim your benefits. Note that once you claim your benefits, that percentage is locked in for the rest of your life and never increases except due to the cost-of-living adjustments that all recipients receive.

A Spouse’s Social Security Income Payment

An individual has the right to a single benefit although they may be eligible for multiple benefits. At 62 years old, you are entitled to a percentage of your PIA based on your own work record. You may also be entitled to half your ex-spouse’s benefit, and you receive the greatest amount for which you are eligible. As an example, if you are entitled to a PIA of $600 a month and your ex-spouse is entitled to $2,000 at their full retirement age, then you would receive $1,000 a month. If you are planning your retirement and are or will be divorced, you may want to consult with a family lawyer as there are various strategies that may be available to you in order to maximize your spousal benefit.

It’s also important to note that your spousal benefit is dictated by choices that your spouse makes and which you have no control over. Using the above example, imagine a scenario in which the spouse who earned more chose to claim their benefit at 62. Their PIA is reduced to 70%, and your spousal benefit is reduced to 32.5%, which means that you would receive $650. That percentage does increase by approximately 0.2% for each additional month that the spouse waits to claim their benefits up to the full 50%.

How Remarriage Affects Social Security Benefits

Remarriage does affect which benefits are available to you. When you are married, you only have the right to benefits based on your work record and the work record of your current spouse. When you are divorced, you have the right to your benefit in addition to the benefits from any ex-spouse to whom you were married at least 10 years. If the spouse from the second marriage is entitled to $3,000 and waited to full retirement age to claim it, then you would receive $1,500 a month as opposed to $1,000 or $600.

Divorce lawyers advise that there is an exception for people older than 60 years old as they can get married and still be entitled to some or all of the benefits from another spouse. If you are collecting an SSI payment based on the work record of an ex-spouse and get remarried prior to age 60, then those payments would stop or would revert to an amount based on solely your work record. If you were to get divorced again, then you may become eligible for benefits from the other spouse at age 60 and beyond.

Can Multiple People Be Eligible for the Same Benefit?

This is a common concern according to divorce attorneys due to the high divorce rate for second marriages. The answer to the question is yes, and the ex-spouses do not affect each other’s benefits. Both ex-spouses would be eligible for the spousal benefit when they retired, and it does not matter who claims it first. There is a family limit for a current spouse and children that generally amounts to 150% of the PIA. However, ex-spouses do not factor into that equation. There is no regulation that limits how many ex-spouses can be eligible for the benefit based on a single work record.

What If a Child Is Involved?

If you are caring for an ex-spouse’s child that is your natural or legally adopted child, then you are entitled to benefits for that child until the child reaches 16 years old. According to family law attorneys, some of the criteria and restrictions discussed earlier do not apply when it comes to children. The marriage, for instance, does not have to last for 10 years or any specific period, and you could continue to be eligible for this benefit even if you became ineligible for the spousal benefit.

Are These Rules Gender Neutral?

Despite the fact that Social Security was introduced at a time when single-income households were the norm and the vast majority of married woman were stay-at-home moms, the rules were established with gender neutrality in mind, and that approach has been maintained. Family lawyers advise that for the purposes of spousal benefits, all that matters is that you have a Social Security number and that the marriage was officially recognized through a marriage license.

How Do You Claim Spousal Benefits?

The initial process for claiming spousal benefits is the same as claiming your own PIA. However, there are many different regulations not covered here that may apply to your individual case and which can make the process quite complex. While you can begin the process with a phone call, many divorce lawyers recommend doing it in person at your local Social Security office as that will likely be required anyway. Appointments are not required but are recommended as well as they will significantly reduce the amount of waiting time. Once your initial appointment is over, you can then consult with a family law attorney if you need assistance navigating and completing the process.

Additional Information

If you’re a New Jersey divorced spouse who may be eligible for Social Security spousal benefits and have any additional questions, call Lawrence Law at 908-645-1000 or contact us using the form on our website. We can review your eligibility with you and perhaps provide additional assistance, such as acquiring your divorce paperwork and any other legal documents that you may need. Our offices are located in Watchung and Red Bank.

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